Pull out your calculator: presentence custody and enhanced credit

It happens almost every week. I talk to a client who has talked to someone else, who heard from their best friend’s neighbour’s uncle’s friend in law school that they can get extra credit for their time in custody. Sometimes they have heard they can get a credit of two days for every day served and sometimes, they tell me they have heard three.

So to set the record straight: presentence custody is capped at 1.5 to one day and it cannot be more than that no matter how bad the conditions may be. Although, when the conditions are really bad, the sentence may ultimately end up reduced.

Confused? You’re not the only one. Before we get too far into the discussion, let’s set the foundation.

What is pretrial or presentence custody and why does it matter?

Upon arrest, accused persons have the option to attempt bail or to continue through the criminal justice system without addressing bail. If that individual does not get bail, they are housed in a remand facility until the completion of their matter in court. For some people, that means that they spend months or years waiting for their day in court.

This time does not count towards any calculation of parole or early release eligibility if the end result is a sentence. Further, these facilities do not have programming or treatment available to their population. Instead, the men and women in these facilities are often overcrowded, understaffed, and excessively kept in “lockdown.” Lockdown means that the individuals are locked in their cells, without access to telephones, showers, or family visits. The Toronto South Detention Centre experienced all of these issues, which resulted in an infamous riot last year.

Due to these circumstances, judges frequently award “enhanced credit” to recognize the situation in jails, and to proportionately reflect the sentence each person has been given.

What does the law say?

Prior to 2009, 3-for-1 and 2-for-1 monikers were not just for pizza. Depending on a person’s individual circumstance, it would be possible that one day in custody at a remand facility would be credited toward their sentence as three days. In effect, one person could be in custody for 30 days and be credited 90 days on their criminal record.

The Conservative government did not support this approach. The government believed that Canadians needed to be tougher on crime, tougher on criminality, and tougher on sentencing. The government introduced entitled “Truth in Sentencing” to achieve these goals. The government believed that sentences given by a judge should be served exactly to the day as was given. Consequently, the law attempted to stifle offenders’ enhanced credit by limiting the availability of enhanced credit entirely for some people and capping it at 1.5 to one day for everyone else.

The Criminal Code of Canada under sections 719(3) & (3.1) now states that a sentencing court “shall” limit any credit of time spent in custody as a result of an offence to a maximum of one day for each day in custody. However,

“if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).”

Legally speaking, this law meant that most people should be receiving no enhanced credit for the time they are serving and certain people were not eligible whatsoever.

What would make a person ineligible for enhanced credit? Essentially the exceptions were twofold: if a person was denied bail due to their lengthy criminal record or if they had breached their previous bail and were brought back to court on new charges.

What do the courts say?

Ultimately, this issue found its way to the Supreme Court of Canada. In a case called R. v. Summers, the court ruled that sentencing judges maintained the ability to award enhanced custody at a 1.5 to one basis for whatever circumstances they wished to consider, including loss of parole.

In subsequent cases, the constitutionality of the limitations placed on enhanced credit have also been challenged, and been struck down (see cases R. v. Safarzadeh-Markhaliand R. v. Dinardo).

What does this mean for people in custody awaiting trial? It means that these people cannot be prevented from enhanced custody just because they breached a bail or have a lengthy criminal record.

So what does it all mean?

The result has been that in practice, the expectation is that each offender will receive enhanced credit at 1.5 to one. That means that if an offender serves 20 real days in prison, their record can and likely will reflect 30 days.

In some circumstances, an offender may even be able to reduce the sentence further. In its decision in Summers, the Supreme Court stated that in some cases offenders who

“have suffered particularly harsh treatment…can often look to other remedies on sentencing beyond that afforded by the compensatory credit regime in section 719”.

One such example of this type of credit can be found in a decision from the Ontario Superior Court. In R v. Doyle, the offender had been in perpetual lockdowns at the Toronto South Detention Centre, and had been refused proper medical treatment of his diabetes. The result was that the sentencing judge credited Mr. Doyle a “modest mitigation of the offender’s sentence.”

An offender on very strict bail conditions such as house arrest may also enjoy a similar reduction.

While it is by no means a return to 3 for 1, it is a signal that an extreme experience in the presentence interaction with the criminal justice system will factor into the ultimate sentence and likely lead to a reduction.

However, there are some circumstances where enhanced custody could be denied. These cases include situations where an individual behaves poorly in custody, intentionally delays proceedings or when early release or parole is not applicable.